Divided US appeals court blocks Betsy Devos’ deposition

A federal appeals court in San Francisco issued an extraordinary mandamus order on Friday to restrain former U.S. Secretary of Education Betsy DeVos from testifying about the handling of student loans at her former agency.

Plaintiffs in a San Francisco class action lawsuit wanted to question DeVos regarding his role and knowledge of the U.S. Department of Education’s handling of student loan “borrower defense” claims.

The trial court initially dismissed DeVos’ deposition because she was then Cabinet Secretary. However, when she left office in January 2021, the court allowed her removal.


The DOE attempted to block the deposition in a Florida court, but that court transferred the case to U.S. District Judge William Alsup in San Francisco, who was handling the class action lawsuit.

After Alsup denied the motion, the DOE and DeVos asked the United States Court of Appeals for the 9th Circuit to issue a writ of mandamus to vacate the deposition. A divided panel agreed to do so.

The case stems from the DOE’s handling of federally insured student loans while DeVos was secretary.

When a student has reason to dispute a loan for fault on the part of the school – a so-called borrower’s defense case – he can ask the DOE to cancel the loan.

According to statistics relied on by the court, under the Obama administration, 99.2% of requests were granted, many of which resulted from the collapse of Corinthian Colleges, a chain of for-profit schools.

DeVos was nominated by President Donald Trump in 2017 and she took office after a hotly contested confirmation battle.

Evidence in the case revealed that for an 18-month period, from June 2018 to December 2019, the DOE made no decisions in borrower defense cases and the backlog grew to more than 210,000 requests.

The plaintiffs filed a lawsuit to force the DOE to resolve the pending claims. The court subsequently certified a class of plaintiffs for the defense of the borrowers.

The DOE explained its delay: “Making final decisions on such claims is time-consuming and complex…and agencies must be given, within reasonable limits, sufficient time to analyze the issues presented so that they can achieve thoughtful results.

The parties negotiated a settlement that required all cases to be resolved within 18 months and they asked Judge Alsup to approve the settlement. While this process was underway, the plaintiff learned that the DOE had issued 118,000 form letter denials in pending cases, resulting in a denial rate of just under 90%.

Finding it impossible to reconcile the DOE’s stated need for time to resolve these “time-consuming and complex” issues, with its denial of tens of thousands of form-letter claims without any explanation of reasons, Judge Alsup declined to approve the settlement. .

He also authorized plaintiffs to take depositions from officials within the DOE. However, he denied their request to depose DeVos because of the traditional deference courts have given to Cabinet-level officials and the rule that only in ‘extraordinary circumstances’ can they be compelled. to sit for depositions.

However, when DeVos left office, Alsup allowed the plaintiffs to take his deposition.

Alsup discovered that there were extraordinary circumstances. First, he found that the agency acted in bad faith with the borrower’s defense cases; second, that DeVos had unique, first-hand knowledge relevant to solving the case; and finally, there was no less constraining means of obtaining the information.

The DOE then asked the Court of Appeals to issue a writ of mandamus and quash the deposition. DeVos was represented in this case by, among others, David Boies, who represented Al Gore on the United States Supreme Court during the race for the election of George W. Bush.

The Court of Appeal judges are divided on the result.

The majority, in an opinion written by Milan D. Smith and joined by Judge Jacqueline Nguyen, voted against.

Judge Richard Paez dissented.

Smith was appointed to the court in 2006 by George W. Bush. Nguyen was appointed to the court in 2012 by Barrack Obama. Judge Paez was appointed to the court in 2000 by Bill Clinton.

Because a writ of mandamus is an extraordinary remedy, it can only be issued when a district court has made a “palpable error,” a high standard of review.

Although the majority agreed that the DOE acted in bad faith, they said Alsup misapplied the other factors. For relief to be awarded, the plaintiffs would have had to prove that the secretary’s testimony was absolutely essential and that there was no other possible way to obtain the information.

In the majority’s view, Alsup applied less stringent requirements.

Also, the fact that DeVos quit his job didn’t matter. While a deposition would no longer interfere with his day-to-day job responsibilities, the possibility of depositions after service could chill decision-making and could even “discourage” government officials from “taking that job in the first place.”

Justice Paez’s strongly worded dissent argued that Alsup had made no “palpable error” as required by the extraordinary writ; in fact, he had been quite right.

Alsup’s error, if there was one, could not have been clear as there was no definitive standard to apply to a former cabinet official. More importantly, Alsup had essentially applied the same standards as set out by the majority.

Justice Paez said the traditional deference to cabinet officials stemmed in large part from fear that potential depositions would interfere with the performance of their official duties.

Given that DeVos was no longer in office, he wrote, “I fail to see how these concerns apply…Neither the majority, nor the government, nor former Secretary DeVos have identified any government duties she would be distracted from having to get ready and sit down for a three-hour deposition.”

Acknowledging that the depositions of presidents have been allowed, even when in office, Justice Paez suggested that former cabinet members cannot be banned altogether.

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Copyright © 2022 by Bay City News, Inc. Republication, redistribution, or other reuse without the express written consent of Bay City News, Inc. is prohibited.

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